US First Amendment

The First Amendment to the Constitution of the United States, like Article 19 of the ICCPR, powerfully protects freedom of expression. The First Amendment is probably more famous than Article 19 – not only through American popular culture, but also because it is far older and has a long track record of guaranteeing freedom of expression.

Here’s what it says in full:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – First Amendment to the US Constitution.

The First Amendment basically bans government (at any level, not just Congress) from restricting freedom of speech or freedom of the press. It is not as absolute as it sounds. The state can set all sorts of rules on advertising, for example. However, the US Supreme Court treats any contribution to public discourse – no matter how offensive or irrational it seems to be – as a special category of expression that government is not allowed to control unless it has extremely compelling reasons.

Here is a 5-minute video of lawyer Floyd Abrams explaining the Court’s interpretation of the First Amendment. Abrams fought and won landmark cases that enlarged American press freedom in the 1960s and 70s.

How it differs from Article 19

Both the US Constitution and the ICCPR are based on liberal democratic principles; they are more similar than different. The US Bill of Rights (comprising the first 10 Amendments to the Constitution) was a major inspiration for the Universal Declaration of Human Rights, out of which the ICCPR emerged. However, there are at least two interesting differences in the way they treat freedom of expression.

1. A right to receive? Notice that Article 19 includes the right to receive information and ideas, not just express them. This suggests that freedom of expression isn’t just for the speaker’s or sender’s sake; it is meant to give the listener or receiver access to a wide range of information and viewpoints. Americans also talk passionately about the public’s “right to know”. But, interestingly, the First Amendment does not explicitly mention any such right.

How seriously we treat the people’s right to receive information affects media policy. If we believe freedom of expression is mainly for the speaker, we would not be very concerned about the quality and diversity of speech that listeners get to hear: we would just leave it up to the market, and not expect the state to intervene. On the other hand, if we consider the receivers’ rights, and we find that they are not well served by the free market, society would have an obligation to introduce non-market mechanisms to do the job.

This helps to explain why there is a major difference between the US and other Western democracies in their attitude to state-funded media. Most Western democracies have public service broadcasters (like Britain’s BBC and Germany’s Deutsche Welle), funded by taxes or licence fees, that are charged with the responsibility of supplying high-quality news programmes and other diverse content that commercial TV may not produce. (To go deeper, explore the BBC’s public service mission or read this UNESCO report comparing different models.)

Similarly, Scandinavian countries intervene in the newspaper market to subsidise smaller publications from the profits of larger ones, in order to ensure greater diversity in what people get to read. These countries are thinking of freedom of expression in Article 19 terms. In contrast, the US has no state-funded TV channels; and current First Amendment interpretations would not tolerate the Scandinavian-style intervention in newspaper funding. The Philippines, which is strongly influenced by the US, does not have a state-funded TV channel either.

2. Dangerous speech? Under both the ICCPR and the US Constitution, people do not have a right to take offence at other people’s speech: adults cannot expect government censors to protect them from being provoked in the course of public debate. However, some speech can cause more serious harms. “Hate speech” refers to untruths that are spread about a certain community to promote discrimination, hostility or violence against its members. Under the US First Amendment, most hate speech is considered protected – the government cannot censor it or punish people for it if it’s part of the public discourse (though private companies can and do suppress such speech).

The ICCPR takes a very different stand on hate speech. Article 20 actually requires states to prohibit such speech, mainly to protect the rights of minorities to live free of discrimination, hatred and violence. Europe, Canada and Australia all follow this standard, instead of the American approach. (If you want to go deeper into the topic of hate speech, you can visit this link.)